MET PCN BP Stansted

[ccobee80]

I came across this site a few weeks ago after receiving a MET PCN - past threads and support for others gave me the courage to fight against the PCN..... Id like to share how it has gone...

[ccobee80]

This is the original PCN i received

[ccobee80]

since writing to appeal i received this from MET PCN - with Popla number. From reading through other posts and threads i know i need to send evidence of omitted paragraph 9 conditions - can anyone help confirm which points with which i can appeal please? many thanks

[ostell]

Well, for help with this it would help if we could see the complete PCn, suitably redacted of course but leaving dates in

For POPLA write the appeal as though they are 5 year olds, explain everything. Yes that PCN looks as though it has left out required items.

[ccobee80]

oh, of course - I have attached the full document. I have noticed that it is not a penalty but an NRK.

• I have a feeling that I might not be able to appeal the PCN as they seem to have covered all bases.....unless I have missed something. only that the photos are not proof of parking... Thank you for sharing your time and knowledge with me on this, much appreciated.

[ostell]

There is no period of parking. Time between the cameras, when the vehicle is moving, is not parking. 9 (2) (a)

No warning to Keeper given 9 (2) (f).

[ccobee80]

Good evening I have finally completed my POPLA Document - So many great responses that wonderful people have shared in order to help others at the beginning of their fight. A bit of work, but if we all go that little further to revoke - we may beat them once and for all! I have a few comments/queries about my response that I was hoping could be given a glance over by any seasoned professionals, before I upload to POPLA.

1) Should I question the time stamp, whether it has been altered?

2) I used a case example 'Woodchester and swayne from 1998 - is this still valid/in date?

3) I discuss in paragraph 7 how the 'close-up' of the registration plate is not valid as both show a white background - though the image is trying to depict the front end of the car and then the rear, which should be yellow. Does that part make sense?

Any Other noticeable mistakes or changes - please do advise - any suggestions will be greatly appreciated.

Many thanks for your help thus far Legal Beagles



Popla Verification Code: XXXXXXX
Vehicle Registration: XXXXXXX

I, the registered keeper of this vehicle, received a letter dated 05/04/2018 acting as a notice to the registered keeper.

My appeal to the Operator, MET Parking Services, was submitted and acknowledged by the Operator on 13/04/2018 and rejected via an email dated 24/04/2018.

I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1)Non-compliance of Notice to Keeper with various requirements set out in Schedule 4 of POFA 2012.
2) MET Parking has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
5) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015.
6) The ANPR System is Neither Reliable nor Accurate
7) Vehicle images are non-compliant
8) Failure to transparently warn use of ANPR Data


1) Non-compliance of Notice to Keeper with various requirements set out in Schedule 4 of POFA 2012.


If MET Parking Services wish to make use of the Keeper Liability provisions in
Schedule 4 of POFA 2012, which they have not, the Notice to Keeper must meet the
strict requirements set out in Schedule 4 of POFA 2012; Paragraph 9(2) states the notice must

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

There is no period of parking. Time between the cameras, when the vehicle is moving, is not parking. The notice to keeper does not specify a period of parking. The notice merely indicates a time of entry in to the car park and an exit time from the car park, when the vehicle is in motion. The BPA code of practice makes reference to the fact that entry is not parking and dictates a grace period must be allowed for this very reason. As the Keeper is not the person who was driving, the keeper cannot know what the period of parking is and the legislation dictates it must be specified, presumably for that reason. In Woodchester v Swayne & Co (1998) EWCA Civ 1209 (14 July 1998) it should indeed be accurate and that the failure made the relevant notice invalid. It was also the deciding factor in Parking Eye v Mrs X Case No: 3JD08399 in the Altrincham County Court.

http://nebula.wsimg.com/c289944f81b4...&alloworigin=1


(b)The notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

MET Parking blatantly fails to mention the 28 day timeframe whereas it must have
set out clearly in the Notice to Registered Keeper when and in what circumstances
MET Parking would have the right to recover from the keeper the amount that
remains unpaid. Such omission invalidates the Notice to Registered Keeper that I received.



2) MET Parking has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''



3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:


a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined


b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation


c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement


d) who has the responsibility for putting up and maintaining signs


e) the definition of the services provided by each party to the agreement


4) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near or in full view of a one.

Image 1: Evidence that the signs setting out the terms and conditions are not made
prominent in and around this site. There is only one sign located on the far left end of the car park in front of BP shop seemingly placed about as far from the shop entrance as possible. (see blue arrow for sign, blue diamond for BP shop entrance))


[IMG]file:////Users/chloe/Library/Group%20Containers/UBF8T346G9.Office/TemporaryItems/msohtmlclip/clip_image001.png[/IMG][IMG]file:////Users/chloe/Library/Group%20Containers/UBF8T346G9.Office/TemporaryItems/msohtmlclip/clip_image002.png[/IMG][IMG]file:////Users/chloe/Library/Group%20Containers/UBF8T346G9.Office/TemporaryItems/msohtmlclip/clip_image003.png[/IMG]









Image 2: Evidence that the sum of the parking charge in not displayed at all on the
sign positioned at the entrance to the site. (see blue arrow)

[IMG]file:////Users/chloe/Library/Group%20Containers/UBF8T346G9.Office/TemporaryItems/msohtmlclip/clip_image004.png[/IMG][IMG]file:////Users/chloe/Library/Group%20Containers/UBF8T346G9.Office/TemporaryItems/msohtmlclip/clip_image005.png[/IMG]



I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the Łsum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.


There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

http://imgur.com/a/AkMCN

In the Beavis case, the Ł85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

http://www-archive.mozilla.org/newla.../sec526pt2.htm

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/...ity-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

...and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Di...5068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.


5) Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015.

The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear not ample, and the motorist had not time to read the signage, let alone
consider it, as the charge was applied instantly the vehicle stopped. The signage
cannot be read safely from a moving vehicle.

In this occasion, the Operator are claiming a charge that is tenfold their rate for the period of 30 minutes that the driver allegedly parked, over their original paid ticket. This is clearly punitive and contravening the Consumer Rights Act 2015, not clearly demonstrated in the terms and conditions of the signage and a totally exploitative profiteering practice of any driver's situation.


6) The ANPR System is neither reliable nor accurate
The MET Parking Services Notice to Keeper shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.

The Notice to Keeper states: “On /2018 the vehicle: XXXXX entered the car park car park xxxx, at xxxxx
and departed at xxxxx on /2018.” These times do not equate to any single evidenced period of parking.
By MET Parking Services own admission on their Notice to Keeper, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed. Since there is no evidence of actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states; “Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Paragraph 21.3 of the BPA Code of Practice states that parking companies are required to ensure ANPR equipment is maintained and is in correct working order.

I require MET Parking Services to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images.

7) Vehicle Images contained in PCN: BPA Code of Practice –non-compliance. The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The Photographs must refer to and confirm the incident which you claim was unauthorised. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The PCN in question contains two close-up images of the vehicle, depicting front and rear ends, allegedly entering and exiting the car park.
These photographs do not clearly identify the vehicle entering or leaving this car park (which is also not identifiable in the photos as of any particular location at all).

The images have been cropped and digitally altered to show the registration of the car directly below. These are altered additions, purporting to show the registration plate, from each photographs, zoomed in, however, both registration images are with a white background. As all rear registration plates are yellow, this indicates that the registration under the second image has been replicated, duplicated, altered and is not the original image.
I require MET Parking Services to produce evidence of the original "unaltered’ photographs to verify where the photographs show the car to be when there is a lack of any marker or sign to indisputably relate these photos to the location stated.


8) The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for.

The signs fail to transparently warn drivers of what the ANPR Data will be used for which breaches the BPA Code of Practice and the Consumer Protection From Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.
Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. Met Parking Service signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

(1)A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2)A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

And Paragraph 69: Contract terms that may have different meanings:

(1)If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.
Withholding material information from a consumer about the commercial (not security) purpose of the cameras would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 because the Operator 'fails to identify its commercial intent'

:http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6.(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)

(a)The commercial practice omits material information,

(b) the commercial practice hides material information,

(c) The commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d)The commercial practice fails to identify its commercial intent, unless this is already apparent from the context,
and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise. ‘It is far from 'apparent' that a camera icon means a car's data is being harvested for commercial purposes of charging in a free car park. A camera icon suggests CCTV is in operation for security within the car park


I therefore request that POPLA uphold my appeal and cancel this PCN.

[ostell]

in (1) give the full reference ie 9 (2) (a) and 9 (2) (f).

[ccobee80]

thank you ostell I have changed to the full reference. I will get it uploaded tonight.

[luxardo]

Just reading this now and some excellent points ... well done ...... what was the outcome ?